Immigrants fighting to stay in the United States are flooding the federal appellate courts with cases, creating huge backlogs and fundamentally changing the character of the second-highest courts in the nation.
The deluge reflects growing dissatisfaction with the nation’s immigration courts, and attorneys representing asylum-seekers and others say they have little choice but to appeal to the federal judiciary.
The trend is nationwide, federal records show, but bearing the brunt of this sudden surge is the San Francisco-based U.S. 9th Circuit Court of Appeals. In the year ending June 30, 2001, the immigration caseload was 965. It skyrocketed to 4,835 cases in the year ending in June 2004.
“Three years ago, immigration cases were 8% of our calendar,” said 9th Circuit Judge Michael Daly Hawkins. “Today, as we speak, that percentage is 48%.”
Many people caught entering the country illegally never appear in the nation’s 53 immigration courts, which primarily deal with those hoping to obtain asylum or avoid deportation.
In those courts asylum-seekers testify about persecution they suffered in their home countries, hoping a judge will allow them to stay here. Other immigrants fight to remain in the United States after a criminal conviction makes them eligible for possible deportation.
Still others petition immigration courts to change their residency status from temporary to permanent. Petitioners who disagree with an immigration judge’s ruling may appeal to the Virginia-based BIA.
The sharp rise in BIA decisions being appealed to the circuit courts has been triggered by several factors:
• Overall immigration is up, increasing the pool of potential petitioners. According to an analysis of census figures by the Washington-based Center for Immigration Studies, the immigrant population, both legal and illegal, reached more than 34 million in March 2004—an increase of 4.3 million just since 2000.
• Tougher enforcement of immigration laws has also funneled more cases into the system.
• The BIA’s duties were curtailed and its size halved, from 23 to 11 members, as a cost-saving measure in 2002.
Some immigration attorneys acknowledged that the generally liberal reputation of the 9th Circuit and its willingness to challenge rulings by immigration judges and the BIA often influenced their decision to appeal to the court.